Geneva Conventions

The Geneva Convention: the signature-and-seals page of the 1864 Geneva Convention, that established humane rules of war.

Original document as PDF in single pages, 1864

The Geneva Conventions comprise four treaties, and three additional protocols, that establish the standards of international law for humanitarian treatment in war. The singular term Geneva Convention usually denotes the agreements of 1949, negotiated in the aftermath of the Second World War (1939–45), which updated the terms of the two 1929 treaties, and added two new conventions. The Geneva Conventions extensively defined the basic rights of wartime prisoners (civilians and military personnel), established protections for the wounded and sick, and established protections for the civilians in and around a war-zone. The treaties of 1949 were ratified, in whole or with reservations, by 196 countries.[1] Moreover, the Geneva Convention also defines the rights and protections afforded to non-combatants, yet, because the Geneva Conventions are about people in war, the articles do not address warfare proper—the use of weapons of war—which is the subject of the Hague Conventions (First Hague Conference, 1899; Second Hague Conference 1907), and the bio-chemical warfareGeneva Protocol (Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare, 1925).

Contents

The Swiss businessman Henry Dunant went to visit wounded soldiers after the Battle of Solferino in 1859. He was shocked by the lack of facilities, personnel, and medical aid available to help these soldiers. As a result, he published his book, A Memory of Solferino, in 1862, on the horrors of war.[2] His wartime experiences inspired Dunant to propose:

A government treaty recognizing the neutrality of the agency and allowing it to provide aid in a war zone

The former proposal led to the establishment of the Red Cross in Geneva. The latter led to the 1864 Geneva Convention, the first codified international treaty that covered the sick and wounded soldiers in the battlefield. On 22 August 1864, the Swiss government invited the governments of all European countries, as well as the United States, Brazil, and Mexico, to attend an official diplomatic conference. Sixteen countries sent a total of twenty-six delegates to Geneva. On 22 August 1864, the conference adopted the first Geneva Convention "for the Amelioration of the Condition of the Wounded in Armies in the Field". Representatives of 12 states and kingdoms signed the convention:[3][4]

On 20 October 1868 the first, unsuccessful, attempt to expand the 1864 treaty was undertaken. With the 'Additional Articles relating to the Condition of the Wounded in War' an attempt was undertaken to clarify some rules of the 1864 convention and to extend them to maritime warfare. The Articles were signed but never ratified by all parties. Only the Netherlands and the United States ratified the Articles.[7] The Netherlands later withdrew their ratification.[8] The protection of the victims of maritime warfare would later be realized by the third Hague Convention of 1899 and the tenth Hague Convention of 1907.[9]

In 1906 thirty-five states attended a conference convened by the Swiss government. On 6 July 1906 it resulted in the adoption of the "Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field", which improved and supplemented, for the first time, the 1864 convention.[10] It remained in force until 1970 when Costa Rica acceded to the 1949 Geneva Conventions.[11]

The 1929 conference yielded two conventions that were signed on 27 July 1929. One, the "Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field", was the third version to replace the original convention of 1864.[12][9] The other was adopted after experiences in World War I had shown the deficiencies in the protection of prisoners of war under the Hague Conventions of 1899 and 1907. The "Convention relative to the Treatment of Prisoners of War" was not to replace these earlier conventions signed at The Hague, rather it supplemented them.[13][14]

Inspired by the wave of humanitarian and pacifistic enthusiasm following World War II and the outrage towards the war crimes disclosed by the Nuremberg Trials, a series of conferences were held in 1949 reaffirming, expanding and updating the prior Geneva and Hague Conventions. It yielded four distinct conventions:

The First Geneva Convention "for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field" was the fourth update of the original 1864 convention and replaced the 1929 convention on the same subject matter.[15]

The Second Geneva Convention "for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea" replaced the Hague Convention (X) of 1907.[16] It was the first Geneva Convention on the protection of the victims of maritime warfare and mimicked the structure and provisions of the First Geneva Convention.[9]

The Third Geneva Convention "relative to the Treatment of Prisoners of War" replaced the 1929 Geneva Convention that dealt with prisoners of war.[17]

In addition to these three conventions, the conference also added a new elaborate Fourth Geneva Convention "relative to the Protection of Civilian Persons in Time of War". It was the first Geneva Convention not to deal with combatants, rather it had the protection of civilians as its subject matter. The 1899 and 1907 Hague Conventions had already contained some provisions on the protection of civilians and occupied territory. Article 154 specifically provides that the Fourth Geneva Convention is supplementary to these provisions in the Hague Conventions.[18]

The third protocol emblem, also known as the Red Crystal

Despite the length of these documents, they were found over time to be incomplete. In fact, the very nature of armed conflicts had changed with the beginning of the Cold War era, leading many to believe that the 1949 Geneva Conventions were addressing a largely extinct reality:[19] on the one hand, most armed conflicts had become internal, or civil wars, while on the other, most wars had become increasingly asymmetric. Moreover, modern armed conflicts were inflicting an increasingly higher toll on civilians, which brought the need to provide civilian persons and objects with tangible protections in time of combat, thus bringing a much needed update to the Hague Conventions of 1899 and 1907. In light of these developments, two Protocols were adopted in 1977 that extended the terms of the 1949 Conventions with additional protections. In 2005, a third brief Protocol was added establishing an additional protective sign for medical services, the Red Crystal, as an alternative to the ubiquitous Red Cross and Red Crescent emblems, for those countries that find them objectionable.

The Geneva Conventions of 12 August 1949. Commentary (The Commentaries) is a series of four volumes of books published between 1952 and 1958 and containing commentaries to each of the four Geneva Conventions. The series was edited by Jean Pictet who was the vice-president of the International Committee of the Red Cross. The Commentaries are often relied upon to provide authoritative interpretation of the articles.[20]

The Geneva Conventions are rules that apply only in times of armed conflict and seek to protect people who are not or are no longer taking part in hostilities; these include the sick and wounded of armed forces on the field, wounded, sick, and shipwrecked members of armed forces at sea, prisoners of war, and civilians.
The first convention dealt with the treatment of wounded and sick armed forces in the field.[21]
The second convention dealt with the sick, wounded, and shipwrecked members of armed forces at sea.[22][23]
The third convention dealt with the treatment of prisoners of war during times of conflict.[24]
The fourth convention dealt with the treatment of civilians and their protection during wartime.[25]

With two Geneva Conventions revised and adopted, and the second and fourth added, in 1949 the whole set is referred to as the "Geneva Conventions of 1949" or simply the "Geneva Conventions". Usually only the Geneva Conventions of 1949 are referred to as First, Second, Third or Fourth Geneva Convention. The treaties of 1949 were ratified, in whole or with reservations, by 196 countries.[1]

The Geneva Conventions apply at times of war and armed conflict to governments who have ratified its terms. The details of applicability are spelled out in Common Articles 2 and 3. The topic of applicability has generated some[clarification needed] controversy.[citation needed] When the Geneva Conventions apply, governments have surrendered some of their national sovereignty by signing these treaties.[citation needed]

This article states that the Geneva Conventions apply to all cases of international conflict, where at least one of the warring nations have ratified the Conventions. Primarily:

The Conventions apply to all cases of declared war between signatory nations. This is the original sense of applicability, which predates the 1949 version.

The Conventions apply to all cases of armed conflict between two or more signatory nations, even in the absence of a declaration of war. This language was added in 1949 to accommodate situations that have all the characteristics of war without the existence of a formal declaration of war, such as a police action.[23]

The Conventions apply to a signatory nation even if the opposing nation is not a signatory, but only if the opposing nation "accepts and applies the provisions" of the Conventions.[23]

Article 1 of Protocol I further clarifies that armed conflict against colonial domination and foreign occupation also qualifies as an international conflict.

When the criteria of international conflict have been met, the full protections of the Conventions are considered to apply.

This article states that the certain minimum rules of war apply to armed conflicts " where at least one Party is not a State".[37] The interpretation of the term armed conflict and therefore the applicability of this article is a matter of debate.[23] For example, it would apply to conflicts between the Government and rebel forces, or between two rebel forces, or to other conflicts that have all the characteristics of war, whether carried out within the confines of one country or not.[38] There is two criteria to distinguish non-international armed conflicts from lower forms of violence. The level of violence has to be of certain intensity, for example when the state cannot contain the situation with regular police forces. Also, involved non-state groups need to have a certain level of organization, like a military command structure.[39]

The other Geneva Conventions are not applicable in this situation but only the provisions contained within Article 3,[23] and additionally within the language of Protocol II. The rationale for the limitation is to avoid conflict with the rights of Sovereign States that were not part of the treaties. When the provisions of this article apply, it states that:[40]

Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

outrages upon dignity, in particular humiliating and degrading treatment; and

the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicialguarantees which are recognized as indispensable by civilized peoples.

The term protecting power has a specific meaning under these Conventions. A protecting power is a state that is not taking part in the armed conflict, but that has agreed to look after the interests of a state that is a party to the conflict. The protecting power is a mediator enabling the flow of communication between the parties to the conflict. The protecting power also monitors implementation of these Conventions, such as by visiting the zone of conflict and prisoners of war. The protecting power must act as an advocate for prisoners, the wounded, and civilians.

Not all violations of the treaty are treated equally. The most serious crimes are termed grave breaches, and provide a legal definition of a war crime. Grave breaches of the Third and Fourth Geneva Conventions include the following acts if committed against a person protected by the convention:

Nations who are party to these treaties must enact and enforce legislation penalizing any of these crimes. Nations are also obligated to search for persons alleged to commit these crimes, or persons having ordered them to be committed, and to bring them to trial regardless of their nationality and regardless of the place where the crimes took place.[42]

The application of the Geneva Conventions to the 2014 conflict in Ukraine (Crimea) is a troublesome problem because some of the personnel who engaged in combat against the Ukrainians were not identified by insignia, although they did wear military-style fatigues.[54] The types of comportment qualified as acts of perfidy under jus in bello doctrine are listed in Articles 37 through 39 of the Geneva Convention; the prohibition of fake insignia is listed at Article 39.2, but the law is silent on the complete absence of insignia. The status of POW captured in this circumstance remains a question.

^"The Geneva Convention Relative to the Treatment of Prisoners of War". The American Journal of International Law. 47: 119–177. 1953. JSTOR2213912.

^Bugnion, Francios (2000). "The Geneva Conventions of 12 August 1949: From the 1949 Diplomatic Conference to the Dawn of the New Millennium". International Affairs. 76: 41–51. doi:10.1111/1468-2346.00118. JSTOR2626195.

^"Practice Relating to Rule 157. Jurisdiction over War Crimes". International Committee of the Red Cross. Retrieved 30 January 2017. Article 49 of the 1949 Geneva Convention I, Article 50 of the 1949 Geneva Convention II, Article 129 of the 1949 Geneva Convention III and Article 146 of the 1949 Geneva Convention IV provide: The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article. Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed [grave breaches of the 1949 Geneva Conventions], and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.